ITV and GMTV – Was it fraud???

Whilst I was away Deliotte finished their investigation of the use of premium rate interactive services (“PRS”) in programming on all ITV channels. Before its release Michael Grade had spoken of a Zero Tolerance approach the channel would take. On its release, Grade told us, had he been in charge whilst all this was going on that he’d have resigned. Correct me if I am wrong, but some of this similar behaviour was going on at the BBC WHILST he was in control. Handy he changed job then. I am not calling for Grade’s head – I think he’s the kind of person ITV need in control – but to take no action against anyone involved (which seems to be what has happened thus far) is just jaw dropping – anyone would think he was the Prime Minister.

Deliotte’s report is quite clear that their were serious issues in a (limited) number of ITV programmes including Ant and Dec’s Saturday Night Takeaway, Gameshow Marathon and Soapstar Superstar, where Production staff consistently over-rode votes or allowed viewers to enter competitions they had no chance of winning. And yet everyone keeps there jobs?

The Serious Fraud Office (SFO) has said it is now looking into whether there is any case to be answered by GMTV and Opera Telecom over the quiz’s on Richard & Judy (the answer surely is yes). If that is the conclusion they reach is another matter of course, and ITV will certainly be hoping the answer is no. If the SFO does go after GMTV, then despite claims in the deliotte report that ‘ITV has taken specialist legal advice … and is advised that the evidence does not support any allegations of criminal behaviour’, the Channel may be quickly looking for a second opinion, as it seems clear that production staff ignored the terms and conditions of competitions and made their own decisions.

According to the report, in relation to PrizeMountain (Ant & Dec): “Working from a randomly selected shortlist, researchers responsible for winner selection would listen to telephone messages left by entrants to identify those who sounded lively and who were, therefore, likely to be entertaining on-screen recipients of the Prize Mountain. A final shortlist was then prepared of the potential winner and other possible winners who lived in locations that could be visited at the same time. A researcher would then visit those on the shortlist on a pretext, and engage them in conversation in order to judge their likely reaction on screen if they were to win the Prize Mountain. On the basis of that assessment the winner was selected. This process did not comply with the terms and conditions for the competition, which stated that the winner would be the first correct entry drawn at random from all eligible entries”.

If we look at the Fraud Act 2006, it provides for a general offence of fraud with three ways of committing it, which are by false representation, by failing to disclose information and by abuse of position.

Section 2: Fraud by false representation 10. Section 2 makes it an offence to commit fraud by false representation. Subsection (1)(a) makes clear that the representation must be made dishonestly. This test applies also to sections 3 and 4. The current definition of dishonesty was established in R v Ghosh [1982] Q.B.1053. That judgment sets a two-stage test. The first question is whether a defendant’s behaviour would be regarded as dishonest by the ordinary standards of reasonable and honest people. If answered positively, the second question is whether the defendant was aware that his conduct was dishonest and would be regarded as dishonest by reasonable and honest people.11. Subsection (1)(b) requires that the person must make the representation with the intention of making a gain or causing loss or risk of loss to another. The gain or loss does not actually have to take place. The same requirement applies to conduct criminalised by sections 3 and 4. 12. Subsection (2) defines the meaning of “false” in this context and subsection (3) defines the meaning of “representation”. A representation is defined as false if it is untrue or misleading and the person making it knows that it is, or might be, untrue or misleading. 13. Subsection (3) provides that a representation means any representation as to fact or law, including a representation as to a person’s state of mind. 14. Subsection (4) provides that a representation may be express or implied. It can be stated in words or communicated by conduct. There is no limitation on the way in which the representation must be expressed. So it could be written or spoken or posted on a website.

Now, I am not a lawyer, but I can see how this could be applied in both the GMTV and ITV cases to at least bring charges. GMTV and ITV may yet escape, whether Opera Telecom will be as lucky is another question.